Page:Federal Reporter, 1st Series, Volume 1.djvu/657

 LAVIN V. EMIGRANT INDUSTRIAIi SAVINSS BANK. 649 �the indorsement does not tend to show that he did not. The chief clerk was a proper officer to receive and note his in- structions. It certainly cannot be held that this evidence is sufficient, if, indeed, it has any competency, to overthrow the record. Both the chief clerk and the surrogate would have been competent witnesses for the plaintiff, and they were the only persons, apparently, who knew the fact, if the fact was otherwise than appears by the record. Neither of them was çalled. There is no statute of New York referred to which requires, nor is the point made against these letters, that the petitioner or witnesses should be produced in person before the surrogate, or examined viva voce, or that the proof of the essential facts may not be made to his satisfaction by affi- davit. �It must therefore be held that this case is not brought within the second decision of the case of Roderigas v. Sav- ings Institution, and that the surrogate passed upon the ques- tion of the death of John Lavin upon competent evidence ; that the letters were issued by him; and that in these respects, and if there is no other fatal objection, the case is within the first decision by the court of appeals, which held the finding of the fact of death conclusive as against the alleged intestate, at least as a protection to an innocent party acting in good faith in reliance upon the letters. �It is urged, however, that the decision referred to should not be followed by this court; that it is not supported by authority or reason; .that the comrt was almost equally di- vided, and that in the second decision the authority of the first decision is questioned and greatly impaired. The fact that the decision was made by a divided court does not make the decision any the less authoritative, if the point consid- ered was deliberately determined by the court. �In ail cases that fall within the thirty-fourth section of the judiciary act, (Eev. St. § 721,) which makes the statutes of the several states rules of decision in the courts of the United States in ail actions at common law, the decision of the high- est judieial court of the state on the construction of the state statute is followed by the courts of the United States. Thus^ ��� �